I’ve
posted an essay, “Presidential Impeachment in Partisan Times: The Historical
Logic of Informal Constitutional Change” to SSRN.The argument of the essay runs as
follows.The unconventional presidency
of Donald Trump has made presidential impeachment once again an issue of
national concern.But do legal academics
have a good grasp on what happened in past presidential impeachments with
respect to the meaning of the constitutional standard (“high crimes and
misdemeanors”)?In this essay, I argue
that prior scholarship has largely ignored the historical context and thus the
real lessons of the three most prominent instances in which Congress attempted
to impeach and convict a president: those of Andrew Johnson, Richard Nixon, and
Bill Clinton.The essay then goes beyond
these historical episodes to make a contribution to the ongoing debate in
constitutional theory over theories of informal constitutional change.

Impeachment
scholarship has been predominantly originalist.There is a large measure of consensus on the meaning of the “high crimes
and misdemeanors” standard, which I call the “Hamiltonian vision.”The Hamiltonian vision is that impeachment
can be used for a broad category of “political” offenses.Most scholars agree that impeachment does not
require Congress to allege an indictable offense or other violation of
law.Despite this scholarly consensus,
the historical reality of the Johnson, Nixon, and Clinton impeachments is quite
different.Contrary to prior legal
scholarship, I argue that due to the rise of organized political parties, a
party-political logic overwhelmed the framers’ design and created a situation
in which the position that impeachment is limited to indictable offenses could
not be effectively discredited.

I then
use the example of impeachment to generalize about the process of informal
constitutional change and understand what I call its “historical logic.”The essay goes beyond a simple reaffirmation
of living constitutionalism to advocate the value of “developmental” analysis.Developmental analysis makes explicit what is implicit in most work on
living constitutionalism – that it rests on a historicist approach in which
institutional changes such as political parties establish new constitutional
baselines which are the practical equivalent of constitutional amendments.These baselines then form the new context
going forward for evaluating the constitutionality of official action.